2006 (12) TMI 571 - AT - Central Excise

Summary

Issues involved: Preliminary objections to the appeals u/s Section 35B(2) and applicability of Section 12E.

Preliminary Objections u/s Section 35B(2): The appeals and cross objections were against an Order-in-appeal that set aside the order-in-original confirming the demand and penalties. The respondents raised objections to the appeals based on the applicability of Section 35B(2). The issue was whether the Commissioner had followed the law as laid down in the Section, specifically regarding the legality and propriety of the order-in-appeal. The Commissioner had to form an opinion that the order was not legal and proper before filing an appeal. The grounds of appeal indicated the Commissioner's opinion, but it was unclear if this opinion was formed prior to filing the appeals. The Tribunal found this issue arguable and could not form a conclusive opinion.

Applicability of Section 12E: The second preliminary objection raised was regarding the provisions of Section 12E, which empower a higher officer to exercise powers and duties conferred upon sub-ordinate officers. The Commissioner had filed the appeals himself, whereas Section 35B(2) mandates the Commissioner to direct any Central Excise officer to file an appeal. A similar issue was raised in a previous case, where there was a difference of opinion among the Tribunal members. The Member (Judicial) held that the Commissioner filing the appeal himself did not comply with Section 35B(2) and that the appeal was not maintainable on these grounds. The Member pointed out that Section 12E and Section 35B serve different objectives and the Commissioner's action did not align with the requirements of Section 35B(2). The Tribunal agreed with the majority decision and dismissed the appeals on the preliminary objections raised by the respondents without delving into the merits.